R. v. Baldwin Travel and Tours Limited, 2011 ONCJ 107

Citation: R. v. Baldwin Travel and Tours Limited, 2011 ONCJ 107 In the matter of Her Majesty the Queen in Right of Ontario (Travel Industry Council of Ontario, hereinafter “TICO”) v. Baldwin Travel and Tours Limited And Harjeet Davda (hereinafter “defendants”) In the matter of Sentencing Before Justice of the Peace Donald Dudar Heard on January 4, 2011and February 1, 2011 Decision and Reasons Issued March 01 , 2011 S.

Karas........................................................................................................................ for the prosecution self ................................................................................................................................. for the defendants Statutes Cites Provincial Offences Act. R.S.O. 1990,

CHAPTER P.33 (“POA”) Travel Industry Act, 2002; S.O. 2002, c.30, (“TIA”) Cases Cited Ontario (Travel Industry Council) v. Baldwin Travel and Tours Ltd. [2010] O.J. No. 3859 R. v. Cotton Felts (ON CA), [1982] O.J. No. 178 R. v. Jenkins, 2010 ONCA 278 , [2010] O.J. No. 1517 R. v. Kirk, 2005 ONCJ 352 JUSTICE OF THE PEACE Dudar: Decision of the Court 1. Having regard to the positions of the parties, as set out below, The Court orders Harjeet Davda to pay a fine in the amount of$2,000.00, with 12 months to pay. In addition, the Court orders Ms.

Davda to pay restitution to the Travel Industry Council of Ontario inthe amount of $50,702.00, which is to be fully repaid by no later than 28 February, 2026, a period of fifteen years. 2. Sentence against the corporate defendant, which is now bankrupt, is suspended. The Positions of the Parties 3. This is a matter before the Court for the purpose of sentencing, the Court having entered convictions against both the Corporateand personal defendants on September 10, 2010. 4. The history of these proceedings is certainly unusual, in that the defendants were represented throughout pre-trial matters by

Counsel. On the day set for trial, Counsel requested an adjournment of the trial proceedings, which request was denied, as reported inOntario (Travel Industry Council) v. Baldwin Travel and Tours Ltd. [2010] O.J. No. 3859. Once the motion to adjourn was denied,Counsel then sought to be removed as counsel of record, which motion was also denied. Upon hearing the Court’s decision in thatregard, Counsel then advised the Court he was “excusing himself”, and without seeking leave of the Court, left. He did take the positionthat this was not a bar to the Court proceeding in absentia, which is what happened. 5.

On resuming for the purposes of sentencing, the Crown prosecutor requested that the Court order a pre-sentence report beprepared. This was a highly unusual request, as the defendant had not attended any of the prior proceedings. However, giving weight tothe fact that the prosecution would be seeking a custodial disposition, and having regard to the issuance of the Court decision in R. v.Jenkins, 2010 ONCA 278 , [2010] O.J.

No. 1517, this Court believed that a pre-sentence report would afford the Court theadditional information that would be helpful to the issues on sentencing and the Court adopted the recommendation. It might alsoprovide an opportunity for the defendant to provide input on the issues. 6. The pre-sentence report offered the following assessment: Harjeet Davda is a 67 year old woman who is before the Court for the first time. She denies profiting from her company`smismanagement but appears to accept responsibility for her actions and is regretful and embarrassed for the money she has lost.

She isseverely affected by rheumatoid arthritis and continues to undergo surgeries to contain the progression of the disease. She appears to bein significant pain and is physically debilitated. She has suffered from depression in the past and continues to struggle. Despite their reported financial losses her family and friends remain supportive and concerned. 7. During the hearing on sentencing, Ms. Davda accepted full responsibility for her actions. This is in stark contrast to the apparentposition taken by Counsel prior to trial. 8.

She reported that the business had been running at a loss for some time and that she used the funds to cover operating costs. Shereports that she borrowed heavily from family members, though she acknowledges that they have been indemnified at least in partthrough the corporation`s bankruptcy proceedings. 9. Ms. Davda reports only nominal income from pension and social security benefits. She also advises that she has accumulatedequity of approximately $200,000 in the family home. She and her husband no longer own any vehicles. 10.

The Crown relies on the sentencing provisions set out in s.718 of the Criminal Code of Canada. This is based on the appealdecision set out in R. v. Kirk, 2005 ONCJ 352. Further, the Crown relies on a number of decisions at both the level of first instance aswell as at the appeal level, to establish the principles for sentencing. Further, the Crown prosecutor provided a

summary of casesrelating to prosecutions under the enabling statute. 11. Ms. Davda simply calls on the mercy of the Court, and relies on her poor financial circumstances. It is critical to note that, forthe purpose of the sentencing hearing, she is self-represented. While she indicated at various times that she continued to suffer fromphysical pain and the effects of medications, it is clear that she was lucid and persuasive in her representations to the Court. 12.

She concedes that, should it would be appropriate for the Court to consider some level of restitution, and argues that, if therestitution required is the full amount of demonstrated losses repaid by TICO’s compensation funds, then a longer period of time thanthat requested by the prosecution should be granted. Reasoning of the Court 13. The Court is guided principally by the reasons of the Supreme Court of Ontario sitting as the Court of Appeal, in R. v. CottonFelts (ON CA), [1982] O.J. No. 178.

The principles of sentencing are set out at paragraph 19, as follows: The Occupational Health and Safety Act is part of a large family of statutes creating what are known as public welfare offences. The Acthas a proud place in this group of statutes because its progenitors, the Factory Acts, were among the first modern public welfare statutesdesigned to establish standards of health and safety in the work place. Examples of this type of statute are legion and cover all facets oflife ranging from safety and consumer protection to ecological conservation.

In our complex interdependent modern society suchregulatory statutes are accepted as essential in the public interest. They ensure standards of conduct, performance and reliability byvarious economic groups and make life tolerable for all. To a very large extent the enforcement of such statutes is achieved by finesimposed on offending corporations. The amount of the fine will be determined by a complex of considerations, including the size of thecompany involved, the scope of the economic activity in issue, the extent of actual and potential harm to the public, and the maximumpenalty prescribed by statute.

Above all, the amount of the fine will be determined by the need to enforce regulatory standards bydeterrence: see R. v. Ford Motor Company of Canada Limited (1979), (ON CA), 49 C.C.C. (2d) 1, per MacKinnonA.C.J.O at p. 26; Nadin-Davis, Sentencing in Canada, p. 368 and cases therein cited. 14. It is clear that the Travel Industry Act is a form of consumer protection legislation. There can be no question as to the impact ofeconomic activity relating to consumer activity.

Also, the defendant business conducted a thriving business, such that, in the course of avery few months, transacted sales which were not honoured in excess of fifty thousand dollars. There is evidence of additional salestaking place during this time as well. This was not an insubstantial operation. 15. In this case, the harm to the public is clear and measureable, being the amount that was re-imbursed to consumers as a result ofthe defendants improper actions.

The maximum penalty provided for in the legislation is $50,000 for the personal defendant, plus thepotential for a period of incarceration, as well as the potential for a restitution order. In the case of the corporate defendant, there is noprovision for incarceration and the maximum fine ranges to $250,000. 16. It is clear that the community must be protected from the kind of improper activity adopted by Ms. Davda and the corporationshe operated. There must be a strong signal that any proceeds from such activity must be repaid.

17 . Ms. Davda argues she did not profit personally. That said, the Court notes that she maintained a home which she owns jointly with her husband, and it is a clear and logical inference that any income from the business would have contributed to supporting the house and related expenses and payments. Apart from the assertion that funds were used to operate the business, there is no clear alternative explanation as to how the proceeds were actually disbursed. For example, it is unclear whether Ms. Davda drew any earnings from the business during the impugned time period. 18 .

In all the circumstances, having particular regard to Ms. Davda`s remorse, her physical condition – in particular her medical ailments – and her financial circumstances, a fine at the low end of the spectrum is appropriate. There is little prospect that Ms. Davda will ever return to employment in the travel ind ustry, and specific deterrence is not a major consideration. 19 . However, it would be completely inappropriate for her to enjoy any fruits of her misdeeds, and full restitution is in order.

A period of time to allow repayment, including an anticipation that at some point in time she and her husband will likely liquidate the interest in their home, mitigates for a lengthy period for such restitution. The Crown argued for a period of ten years and the Court orders a period of fifteen years. Issued at City of Brampton, 01 March 2011 HW Donald Dudar Justice of the Peace